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Article Excerpt
INTRODUCTION
I. SELF-RELIANCE, DISCIPLINE, AND THE ETHIC OF RESPONSIBILITY A. Independence as Self-Reliance B. Transcendental Conflict: Independence as Personal Detachment C. Independence Lost: From Detachment to Discipline II. INDEPENDENCE THROUGH POLITICAL ACCOUNTABILITY? A. Early History of the Office of the Attorney General B. From War and Reconstruction: A Department of Justice III. THE CURRENT ADMINISTRATION A. Independence as Moral Activism B. Independence as Legal Positivism C. Independence as Civic Republicanism D. Independence as Political Accountability
INTRODUCTION
Warrantless surveillance, extraordinary rendition, indefinite detention, torture. These are the most serious charges of extralegal conduct by the present administration--conduct which, in one form or another, Attorneys General Ashcroft and Gonzales and their staffs have attempted to give the imprimatur of law. The charges are serious indeed. To them, lesser charges could be added (cronyism, distortion of enforcement priorities, abuse of prosecutorial discretion). (1) What are we to make of the fact that the nation's highest legal officers, not to mention a good number of their subordinates, have been drawn so willingly, it would appear, into a position of complicity with, if not outright endorsement of, extralegal conduct at odds with our most fundamental constitutional and democratic commitments?
As with prior instances of extralegal conduct by Attorneys General, the call is now nearly ubiquitous for a lawyer who would bring greater professional independence to the office, and hopefully thereby, more strict observance of relevant legal restraints, to the pursuit of the President's foreign and domestic policy agendas. (2) But what commentators and congressional critics mean by independence is far from clear. The term is easy to invoke, and it has a long pedigree, not only in debates about the proper role of a government lawyer, but in broader debates about the professional integrity of lawyers in private practice. (3) Still, it admits of no obvious definition.
ABA Model Rule of Professional Conduct 2.1 hints at an answer by providing that "[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice." (4) Comment 1 emphasizes that the lawyer must say what she thinks even if her advice "involves unpleasant facts and alternatives that a client may be disinclined to confront." (5) The lawyer is not to be "deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." (6) And of course a lawyer must withdraw when "the representation will result in violation of the rules of professional conduct or other law." (7) But the rules are equally emphatic that "a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." (8) A lawyer should also "pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." (9)
There is, too, when one examines the discourse on the office of the Attorney General in particular, a distinct tendency for solemn insistence on independence to be followed almost immediately by a concession that politics inevitably influences the role. (10) The concession is telling. On the one hand, we expect Attorneys General to be, borrowing a term from Justice Story, exemplary "public sentinels." (11) In both substance and appearance, we expect them to uphold the strictest fidelity not just to law, but to those basic rule-of-law values upon which the impartial enforcement of law depends. (12) An Attorney General who is seen to treat law with the casual indifference or opportunism of an apostate invites apostasy in all law officers, from the beat cop on up, and, conceivably, in the average citizen as well.
And yet we also expect the President to have the Attorney General of his choosing. In time of war, moreover, even if we do not say with the Romans, inter arma silent legis, we do insist (perhaps a little too quickly) that the Constitution is not a suicide pact. Just as importantly, in times of war and in times of peace we acknowledge that meaningful decisions about the enforcement of existing law and advice about how to pursue administration policies within the bounds of the law cannot possibly be made on the basis of law alone. Whether one sees law as a realist, as inevitably bound up with political judgment, and all the more so in the work of representing the government, or whether one sees legal reasoning as an autonomous discipline which, at least in the work of representing the government, must nonetheless take shape in response to distinctively political concerns, the result is all the same: the role of the Attorney General in enforcing existing law, advising and offering opinions on administration goals, and administering the Department of Justice is both political and legal.
And if that is so, one is left to wonder what kind of independence might operate in this context. If it is independence from the client, who is the client? Is it the same kind of independence the bar expects lawyers to exhibit in relation to private clients?
All too commonly, the call for independence functions merely to disguise dissatisfaction or disagreement with an administration's political goals (and actions taken to further them) in the ostensibly neutral language of professional misconduct. Rather than challenge the political goals directly, critics assail the professionalism of the lawyers charged with implementing or offering legal foundation for them. The same critics are, however, quite often silent or dismissive of professionalism concerns when their preferred party is in power. Much of the academic commentary on the office of the Attorney General, at least since Watergate, has this tendentious structure. (13) So too the confirmation and oversight hearings in Congress. (14) In any event, the structure of the discourse suggests, rather unhelpfully, that independence is a thoroughly dependent term--that its meaning is determined by the broader political terms in which the role of Attorney General is understood and according to which it is played.
If, as it happens, independence as an evaluative criteria for the office of Attorney General also arises primarily ex post, that is to say, in the wake of legal scandals, then independence may turn not just on general political concerns, but more specifically on the presence and perception of ultra vires action by the administration. Only then do Congress, critics, and commentators insist that the Attorney General stand independent of the President he or she serves and the administration's goals. But if the term becomes salient only after other checks on the abuse of power (and law) by an administration have failed, independence may depend for its value, its particular political and professional salience, on extralegal excess. If this is true, then independence is a doubly dependent term, and is thus of little help in gaining analytic purchase on the role of government lawyers.
Finally, there is the paradox that genuinely independent Attorneys General may be too independent to be trusted by an administration. If that leads to their exclusion from the process of decision making on how to achieve critical administration goals, their advice will independent, to be sure, but also irrelevant.
Is there more to professional independence in the office of the Attorney General? Would greater independence have prevented the extralegal conduct of the current administration? How should we account for the seemingly subordinate position of independence in a larger framework of political contestation? What explains our profoundly ambivalent and alternating desire for the legal restraint we expect would follow from independence and the aggressiveness we expect from its absence in the nation's chief law officer?
We might begin by thinking about what independence would mean if it is more than a dependent term. The traditional starting point in the literature on the professional responsibility of lawyers is with antebellum civic republican ideals of disinterested public service and public-minded counseling of private clients. (15) Without denying the importance of civic republican ideals, I believe a broader frame is more appropriate. Civic republican ideals bring into sharp relief the tension between self-interested and market-driven conceptions (some would say distortions) of professional work, on the one hand, and public-minded conceptions on the other. However relevant this tension is in private practice, the range of tensions present in government service is wider because the boundaries between public, personal, and client interest are considerably more opaque. Moreover, as I argue at some length below, a broader cultural and political discourse on independence emerged after and often in resistance to the Federalist and Whig civic republican ideal.
This Article traces a strain of the discourse on independence through the Civil War experience, focusing on the impact of the war for a class of elites who were instrumental in the general movement toward professionalization in the decades leading up to and following the war. The rise of the professions in the latter half of the nineteenth century is well documented. Mid-Victorian Americans used professional organizations, specialized education, and internal regulation to stake out exclusive jurisdictional claims for the provision of lucrative and socially necessary services. (16) The standard narrative, however, downplays both the overall significance of the Civil War and the internal conflicts in the ideas of independence that emerged from the experience of the war.
I have elsewhere emphasized the influence of the war and Reconstruction on the professional identity and formal organization of lawyers. (17) Here my purpose is to show that in the very period in which nineteenth-century elites established institutional structures to legitimate and extend the influence of professional authority, independence took on new and sometimes contradictory meanings. Part I thus follows an arc from transcendentalist and perfectionist ideals of anti-institutional individualism in the 1830s, to radical social reformist projects leading up to the Civil War (especially in the form of abolitionism), to heroic, detached military service during the war, to the eventual valorization of submission to necessary social roles. The overall trajectory is from independence as a rejection of conformity and profound skepticism about the corrupting effects of social institutions to independence as a form of detachment from self in the service of increasingly well-defined and internally regulated social roles. (18) In Part II, I set this arc of understandings of independence against the history of the office of the Attorney General and the creation of the Department of Justice. My objective is not to suggest a strict parallel between cultural understandings of independence and independence in the office of the Attorney General. Rather, I argue that independence takes on a new range of meanings during the very period in which the office of the Attorney General was transformed from a part-time position held by a single lawyer into the superintendent of a bureaucracy responsible for managing the legal affairs of the executive branch. The war and Reconstruction experience is pivotal to this specific instance of professionalization.
I begin with the early history of the office of the Attorney General to emphasize its relatively informal structure and an almost exclusive reliance on political accountability to check excessive dependence upon or subservience to the President (as well as other forms of role corruption). Although there were antebellum calls for formal organization of the office, the Department of Justice was not established until 1870. It emerges not only from the heat of the Civil War, with all the complexities thereby implicated in the intersection of law and executive action in a time of war, but from new demands placed on federal law enforcement by the political and legal work of Reconstruction. Notwithstanding the profound institutional changes provoked by the war and Reconstruction, especially the centralization of control over the legal work of the executive branch in the office of the Attorney General, no major structural reforms were established to protect the independence of the office and prevent the embarrassment of law by politics (presidential, congressional, or popular; wartime, peacetime, or transitional). (19)
We continue to live with those institutional choices and our discourse on professional independence continues to reflect the conflicting desires expressed in the trajectory of nineteenth century ideas about moral rectitude, conformity, duty, and institutional reform. As I argue in Part Ill, we cannot understand the place of professional independence in debates about the role of lawyers for the current administration without engaging that trajectory. Beyond the deceptively reassuring register of moral condemnation, and condemnation from the perspective of professional ethics, there lurks a rather profound and as yet unattended set of questions about the subordination of law to politics in our nation's highest law enforcement office, the relationship between counseling lawlessness and assisting law reform, and the viability of structural reforms that would enhance independence without diminishing political accountability.
I. SELF-RELIANCE, DISCIPLINE, AND THE ETHIC OF RESPONSIBILITY
A. Independence as Self-Reliance
In the American context, the most robust theory of independence is not civic republicanism but the romantic, transcendentalist ideal of Emersonian self-reliance. Emerson's self-reliant man represents the apotheosis of the Cartesian subject. Praising the nonchalance of presocial adolescence, Emerson writes that "a boy is the master of society; independent, irresponsible .... He cumbers himself never about consequences, about interests: he gives an independent genuine verdict. You must court him: he does not court you." (20) Whereas the grown man, he laments, is
clapped into jail by his consciousness.... Ah, that he could pass again into his neutral, godlike independence! Who can thus lose all pledge, and having observed, observe again from the same unaffected, unbiased, unbribable, unaffrighted innocence, must always be formidable.... He would utter opinions on all passing affairs, which being seen to be not private but necessary, would sink like darts into the ear of men, and put them in fear. (21)
Adolescent candor is, for Emerson, but one instance of the kind of free thought self-reliance demands and dependence on the views of others stifles. He rails against the pressures to conform, to "lean and beg day and night," inherent in society. (22) "Society everywhere is in conspiracy against the manhood of every one of its members.... The virtue most in request is conformity." (23) False praise, he continues, is "mortifying," (24) "envy is ignorance," "imitation is suicide." (25) The only true voices, he insists, are those "which we hear in solitude." (26) Genius is not the evolution of received wisdom or tradition (Emerson is "ashamed to think how easily we capitulate to badges and names, to large societies and dead institutions"), (27) but the fortitude "[t]o believe in your own thought, to believe that what is true for you in your private heart, is true for all men." (28) Genius is always the fruit of self-reliance, he admonishes, for "[i]n every work of genius we recognize our own rejected thoughts." (29) In sum, "[w]hoso would be a man must be a nonconformist.... Nothing is at last sacred but the integrity of our own mind. Absolve you to yourself and you shall have the suffrage of the world." (30) "Trust thyself." (31)
Emerson concedes that self-reliance will often put one at odds with others ("For non-conformity the world whips you with its displeasure"), (32) and he knew whereof he spoke. The early journal entries from which his essay on self-reliance grew began in 1832, the year he renounced his pulpit; the later journal entries were written around the time of his famous Divinity School Address, which provoked vituperative attacks in the press and a three-decade ban from Harvard. (33) Still, the essay makes no concession whatsoever to the art of compromise. Great works "teach us to abide by our spontaneous impression with good humored inflexibility then most when the whole cry of voices is on the other side." (34) And as there is no higher authority than the self, "[n]o law can be sacred to me but that of my nature.... What I must do, is all that concerns me, not what the people think." (35) He who leams self-reliance, he insists, not only becomes "doctrine, society, law to himself," (36) but touches the divine. (37)
However divine Emersonian self-reliance may be, it would appear to require a kind of antinomian solipsism so extreme as to preclude any kind of meaningful engagement in social affairs. If so, it is a theory of independence far too robust for any professional, certainly a professional as entrenched in conformity to tradition and the interests of others as a lawyer must be.
Emerson, for his part, is openly disdainful not just of conformity, but of duty: "I have my own stern claims and perfect circle. It denies the name of duty to many offices that are called duties. But if I can discharge its debts, it enables me to dispense with the popular code." (38) He ridicules the "city dolls" who, following college, fret about being "installed in an office within one year afterwards in the cities or suburbs of Boston or New York." (39) The Thoreau-like youth, by contrast, dabbles about, "walks abreast with his days, and feels no shame in not 'studying a profession,' for he does not postpone his life, but lives already." (40) Indeed, Emerson relies so heavily on the metaphor of solitude that it must be considered more than a merely figurative prerequisite to self-reliance. "We must go alone," he insists. "Isolation must precede true society. I like the silent church before the service begins, better than any preaching." (41)
Finally, as if to dismiss any doubt on the question, Emerson offers the "retained attorney" as the very antithesis of a self-reliant man. We know the tired sermon, the canned editorial, the stump speech before they are delivered, just as we know what side the retained attorney will argue, because social roles enforce conformity of thought:
A man must consider what a blindman's-bluff is this game of conformity. If I know your sect, I anticipate your argument. I hear a preacher announce for his text and topic the expediency of one of the institutions of his church. Do I not know beforehand that not possibly can he say a new and spontaneous word? Do I not know that with all this ostentation of examining the grounds of the institution, he will do no such thing? Do I not know that he is pledged to himself not to look but at one side; the permitted side, not as a man, but as a parish minister? He is a retained attorney, and these airs of the bench are the emptiest affectation. Well, most men have bound their eyes with one or another handkerchief, and attached themselves to some one of these communities of opinion. This conformity makes them not false in a few particulars, authors of a few lies, but false in all particulars. (42)
Still, Emerson had higher aspirations for self-reliance than the pleasure and freedom of retreat and itinerancy. The essay moves from a purely solipsistic individualism toward the view that history is made by the self-reliant. "It is easy in the world to live after the world's opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude." (43) More than merely sustaining his independence in a crowd, the self-reliant man reshapes society. "An institution is the lengthened shadow of one man; as, the Reformation, of Luther; Quakerism, of Fox; Methodism, of Wesley; Abolition, of Clarkson.... [A]ll history resolves itself very easily into the biography of a few stout and earnest persons." (44) Thus against the conformity of popular opinion, the oppression of convention and "mob" thought, "[i]t is easy to see that a greater self-reliance--a new respect for the divinity in man--must work a revolution in all the offices and relations of men; in their religion; in their education; in their pursuits; their modes of living; their association; in their property; in their speculative views." (45)
Of course, Emerson offers no mechanics for how this obstreperous, utterly uncompromising intuitionist would move from the woods to the center of social institutions, let alone into a law office. For many years, he was living proof of the inutility of his doctrine. He "held himself aloof from public controversy ... refus[ing] to become directly involved in any of the reform movements agitating American society." (46) And one can question the fit of the examples he gives in support of the character traits he defends.
My purpose for the moment is simply to observe that critics of zealous, client-centered lawyering cling to something like this concept of independence, to the idea that notwithstanding a lawyer's inescapably vicarious action and her embeddedness at the line between tradition and desire (order and liberty), she might nevertheless "go upright and vital, and speak the rude truth in all ways." (47) No confidence would be sacred with such independent counsel. No submission to the client's ends would occur except in the rarest cases of perfect agreement, and even then the client might find herself abandoned at the bar by a self-reliant lawyer who suddenly realized she had been "foolish[ly] consisten[t]" in adhering to the client's cause. (48)
All of us are nonetheless drawn to this ideal of self-reliance, or remnants of it, when we observe conduct in institutional actors that shocks the conscience. We want desperately to believe that, even if some of the actors remain utterly unrepentant, there are others who wish now that they had trusted their intuitions, been less "mendicant and sycophantic," (49) spoken out, said no, quit the offending institution, etc. This retroactive, and, as the case may be, proleptic longing for independence is Emersonian at root. The irony of course is that, by all accounts, the lawyers at the Department of Justice most closely associated with the charges of extralegal conduct by the administration appear to have been animated precisely by their "own stern claims and perfect circle[s]." (50) Indeed, they may have trusted themselves and their intuitions too much. After all, what is the administration's robust theory of executive supremacy in time of war if not the boldest of attempts to throw off "all external support, and stand[] alone" (51) against Congress, the courts, the Constitution as we know it, and even the people? These were lawyers animated less by duty than by cause. (52)
Emerson wrote Self-Reliance at least in part against the traditional republican conception of independence grounded in property rights and institutional engagement. (53) Property ownership, on this view, creates a proper incentive to engage in public service while sustaining the economic independence of the citizen-servant. Wealth thus limits the potentially corrupting effects of service as a source of income; public service cultivates and extends the higher civic virtues. (54) By the 1830s, with the rise of party politics and the spoils system it invited, Emerson's skepticism was not...
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